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HAIG & HAIG, LTD. v. MARADEL PRODS.
January 25, 1966
HAIG & HAIG, LIMITED, Plaintiff,
MARADEL PRODUCTS, INC., Defendant
Metzner, District Judge.
The opinion of the court was delivered by: METZNER
Plaintiff, alleging trade-mark infringement under the Lanham Act, 15 U.S.C. §§ 1051-1127, and dilution of its respective trade-marks under the New York State Anti-dilution Statute, § 368-d General Business Law, McKinney's Consol. Laws, c. 20, moves pursuant to Fed.R.Civ.P. 65 for a temporary injunction.
Plaintiff corporation is a distiller of a Scotch whisky known as "Pinch," which has been registered as a trade-mark since July 5, 1955. Plaintiff also had registered in 1955 a trade-mark on its bottle with three indented sides (herein called "Pinch bottle"). The use of this bottle has continued since 1901, except for the period of prohibition. The name "Pinch" was given to the Scotch in 1951, although it is alleged that the public for many years prior thereto referred to plaintiff's Scotch as Pinch, probably because of the shape of the bottle. Plaintiff has spent a considerable amount of money advertising its Scotch and it seems to be conceded that the product and the trade-marks are well known in the United States.
Two products of defendant are said to infringe and dilute plaintiff's trade-marks. First is defendant's whisky-colored after shave lotion called "Scotch 'n Soda." Aside from color, its essential similarity to plaintiff's product is the conformation of the bottle. The bottle is about one half the size of plaintiff's and is not surrounded by wire mesh, as is plaintiff's, when sold. The labeling is not similar to the plaintiff's. In the exhibit submitted to the court, the after shave lotion is sold in conjunction with a mock siphon bottle of cologne in a rectangular carton and the labeling on the carton is "Scotch 'n Soda." The carton is not similar to the plaintiff's triangular packaging, but plaintiff's papers include an advertisement indicating that when the after shave lotion is sold alone it is packaged in a triangular carton quite similar in design to plaintiff's packaging for its Scotch. The price of Scotch 'n Soda is $2.50.
The second product alleged to infringe plaintiff's trade-mark is defendant's bubble bath called "Pinchy." This admittedly was "dressed to resemble plaintiff's Scotch whisky." The bottle is a nine-ounce pinch bottle with the word "Pinchy" imprinted in white letters on one of the indentations. Plaintiff's bottle has the word "Pinch" in white letters imprinted on one of the indentations. The color of the bubble bath liquid is quite similar to plaintiff's Scotch. The neck label is similar in layout to plaintiff's, but different wording is used. A simulated tax stamp is affixed over the top of the bottle cap.
The bubble bath is packaged in a triangular carton that in color and design is strikingly similar to plaintiff's Scotch. Plaintiff's product is labeled
Defendant's product is labeled
The name of defendant's distributor - "House of Tre-Jur", "Fifth Avenue, New York" - appears on both the carton and the bottle of defendant's ...
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